SaaS Agreement V2026 08
This agreement (the “Agreement”) constitutes a binding agreement between xyzt.ai BV, with registered office at Kempischesteenweg 303/200 3500 Hasselt, Belgium, VAT-BE-0721.781.156 (the “Service Provider”), and the customer entity entering into this Agreement as per the details provided by or on behalf of this entity on the Service Provider’s website when accepting the terms and conditions of this Agreement (the “Customer”).
BY ACKNOWLEDGING ACCEPTANCE OF THE AGREEMENT, YOU ACCEPT (TO BE COMMITTING THE CUSTOMER) TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, INCLUDING THOSE SET OUT IN ANY DOCUMENTS ANNEXED TO OR REFERENCED IN THIS AGREEMENT. BY ACCESSING THE SERVICES, OR CLICKING ON THE AGREEMENT “ACCEPT” (OR EQUIVALENT) BUTTON, YOU ARE CONSENTING (AND COMMITTING THE CUSTOMER ) TO BE BOUND BY THIS AGREEMENT AND ANY DOCUMENTS ANNEXED TO OR REFERENCED IN IT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND ANY DOCUMENTS ANNEXED TO OR REFERENCED IN IT ON BEHALF OF THE CUSTOMER AND TO BIND THE CUSTOMER TO THIS AGREEMENT, AND THAT THE CUSTOMER DETAILS PROVIDED ARE ACCURATE AND COMPLETE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, OR DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER, IMMEDIATELY DISCONTINUE (ANY ATTEMPT TO) ENTER INTO THE AGREEMENT, OR ACCESS OR USE THE SERVICES.
This Agreement shall commence on the date the Customer consents or is deemed to have consented (as per the terms of this Agreement) to the terms and conditions of this Agreement (the “Effective Date”) and shall continue for the term set out in clause 10 below.
The Customer and the Service Provider may individually be referred to as a “Party” and jointly as “the Parties”.
PREAMBLE
Whereas the Service Provider has developed and/or owns certain software applications through which it provides services to customers in a ‘software as a service’ mode.
Whereas the Customer wishes to use the Service Provider’s ‘software as a service’ in its business operations.
Whereas the Service Provider has agreed to provide, and the Customer has agreed to purchase, the Service Provider’s service subject to the terms and conditions of this Agreement.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definitions and Interpretation
1.1 Capitalized terms used in this Agreement shall have the meaning ascribed to them in Schedule A (Definitions) to this Agreement. The body of the Agreement and the Schedules may however contain additional definitions.
1.2 Whenever the word “include(s)” or “including” is used in this Agreement, the enumeration that follows shall be deemed to be non-exhaustive. The headings in this Agreement shall not affect its interpretation.
2. Services – Managed Infrastructure/ Service Provider Undertakings
2.1 Provision of the Services
The Service Provider shall, during the Term, provide the Services to the Customer subject to the terms and conditions of this Agreement.
2.2 Service Delivery and Managed Infrastructure
The Service Provider shall make available the Services as set out in the Documentation in accordance with the service levels set out in the Documentation. The Service Provider shall be responsible for the set-up and maintenance of the Managed Infrastructure. The Managed Infrastructure will be located in (one or more countries of) the European Economic Area.
2.3 Scope of Responsibility and Exclusions
The Service Provider shall provide the Services through the Managed Infrastructure and does not control, nor accept any responsibility in relation to, any event occurring outside of, or any software, hardware, network or other infrastructure component outside of the scope of the Managed Infrastructure. The Service Provider shall not provide for any Customer-side hardware or software, or services (including programming or training), or hardware or software not expressly defined in this Agreement to be a Service Provider responsibility. Technical support outside of the Services scope expressly defined herein (including assistance with Customer-side or workstation-side configuration, errors or issues, any user-specific software customisations, any configuration or troubleshooting of non-Services related software products, or resolution of network issues outside the scope of the Managed Infrastructure) is out of scope of this Agreement and shall only be provided for if expressly separately contracted between the Parties.
2.4 Customer Systems and Technical Requirements
The Service Provider’s undertaking to provide the Services, and any associated warranties as may be set out in this Agreement, are conditional upon the Customer timely putting in place and maintaining all hardware, software, systems and network connectivity needed to connect to and use the Services, including in accordance with the System specifications and minimum requirements as specified in the Documentation or as otherwise communicated by the Service Provider from time to time (provided the Service Provider has granted the Customer a reasonable time to implement any changes to such requirements). The Service Provider shall not be responsible for any delays or additional fees and costs resulting from the Customer’s failure to timely comply with the above requirement.
2.5 Changes, Updates and Maintenance
The Service Provider may make changes or updates to the Managed Infrastructure and Services specifications (including the infrastructure, technical configuration, application features) during the Term (including to reflect changes in technology, industry practices, or patterns of system use) without having to obtain the Customer’s consent, provided that these changes (i) do not adversely impact the agreed functionality, performance or availability of the Services, and (ii) do not result in an increase of the agreed Charges. In the event the Service Provider envisages making changes that are likely to have an adverse impact on the Services, the Service Provider shall provide reasonable prior notice and, where appropriate, consult with the Customer regarding implementation. The Service Provider may additionally perform planned and unplanned maintenance on the Managed Infrastructure as communicated from time to time, without having to obtain the Customer’s consent.
2.6 Backup and Recovery
The Service Provider shall maintain commercially reasonable backup and recovery procedures appropriate to the nature of the Services. Such procedures are intended to support the resilience and recovery of the Services and shall not relieve the Customer of its responsibility to retain copies of Customer Data where reasonably practicable.
The Service Provider does not warrant that loss of Customer Data can in all circumstances be prevented or that all Customer Data can in all circumstances be restored. Any liability of the Service Provider in connection with loss or corruption of Customer Data shall be subject to Article 6.
2.7 Virus Protection and Security Precautions
During the Term, the Service Provider shall implement proven actions and precautions to prevent the introduction and proliferation of a Virus into the Systems.
3. Right of use
3.1 Limited Right to Use the Services
During the Term and subject to timely payment of any undisputed Charges as they fall due, the Service Provider grants to the Customer a restricted, personal (non-transferable, non-assignable, without the right to sublicense, except as expressly stipulated otherwise in the Agreement), non-exclusive right to (permit the Authorised Users to) use the Services and the Documentation solely for the Customer’s internal business operations.
3.2 No Software License; Access Only
The Customer acknowledges and agrees that it is not granted any Software license pursuant to this Agreement, and that the Customer shall not be provided with a copy of the Software pursuant to this Agreement. The Customer shall merely be entitled to access the Software for the purpose of obtaining the Services. To this end, the Customer shall be provided with Access Credentials in respect of each of the Authorised Users.
4. Customer undertakings
4.1 Customer Cooperation and Information
The Customer shall provide the Service Provider with:
(i) such co-operation as reasonably required for the Service Provider to be able to adequately fulfil its obligations under this Agreement; and
(ii) (access to) such information as may reasonably be requested by the Service Provider or as may otherwise reasonably be required for the Service Provider to adequately perform the Agreement.
4.2 Authorised Users and Access Credentials
The Customer undertakes to use all reasonable efforts to procure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement. Without limiting the foregoing, the Customer shall be responsible for identifying and authenticating all Authorised Users, for approving and revoking access to the Services by such Authorised Users, for controlling against unauthorised access to the Services, and for maintaining the confidentiality of Access Credentials. The Customer accepts responsibility for the confidentiality and timely and proper termination of user records in the Customer’s local (e.g. intranet) identity infrastructure or on the Customer’s local computers and systems. The Customer will be responsible for all activities that occur under the Authorised Users’ access credentials (whether performed by an Authorised User or third party), and for implementing its own security measures in order to safeguard the Access Credentials and to prevent disclosure of these Access Credentials to any unauthorised third party. The Customer shall without undue delay notify the Service Provider of any unauthorised access to or use of the Services.
The Customer further undertakes that:
- (i) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of licensed Authorised Users (as per the terms of the Order) at any given time;
- (ii) it shall not allow any Authorised User account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and Documentation.
4.3 Customer Systems and Connectivity
The Customer shall ensure that its Systems comply with the specifications and minimum requirements specified in the Documentation or as otherwise communicated by the Service Provider (as per Article 2.4). The Customer shall be solely responsible for the consequences of the Systems not being compliant with such System requirements. The Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the data centres used by the Service Provider to provide the Services, and agrees that the Service Provider shall not be responsible for any problems, delays, delivery failures or other loss or damage to the extent arising from or relating to the Customer’s infrastructure and the physical data connection line between the Parties’ respective data centres.
4.4 Virus Prevention and Mitigation
The Customer shall not knowingly or by negligence introduce Viruses into the Managed Infrastructure through its use of the Services. To this end, the Customer shall implement proven actions and precautions to prevent the introduction and proliferation of a Virus into the Managed Infrastructure. In the event a Virus is found to have been so introduced into the Managed Infrastructure, the Customer shall assist the Service Provider in reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, to assist the Service Provider to mitigate and restore such losses.
4.5 Acceptable Use and Prohibited Activities
Customer shall be responsible for the use of the Services by the Authorised Users. The Customer undertakes that it shall not (and shall procure that the Authorised Users shall not):
a. attempt to obtain, or assist third parties in obtaining, access to the Services other than as expressly permitted hereunder;
b. perform any Services benchmarks, or disclose the results of any such benchmark tests, without the Service Provider’s prior written consent;
c. bypass or breach any security device or protection used for or contained in the Services;
d. engage in any activity which interferes with or disrupts the Services;
e. except to the extent such restriction is prohibited under applicable law:
(i) (attempt to) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, Services and/or Documentation (as applicable) in any form or media or by any means, save as may be expressly permitted hereunder; or
(ii) (attempt to) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software (the foregoing prohibition includes review of data structures or similar materials produced by the Software);
f. (attempt to) access all or any part of the Software, Services and Documentation for any purpose other than as expressly permitted herein, including (without limitation) in order to build a product or service which competes with the Software, Services and/or the Documentation ; or
g. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except (to the Authorised Users) as expressly permitted hereunder.
If the Customer becomes aware of any breach of this Article 4.5, it shall notify the Service Provider thereof without undue delay.
4.6 Security Testing and Penetration Testing
The Customer shall not perform, or disclose any results of, security testing in respect of the Services or the Managed Infrastructure (including network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing), except to the extent the Service Provider has provided its prior written authorisation for such performance or disclosure or to the extent required pursuant to a request by a regulatory authority (in which case, to the extent permitted under such request, the Customer shall notify the Service Provider of such request and the information to be shared, the Customer shall limit disclosure to what is strictly required for the purposes of such request, and shall use reasonable efforts to have confidential treatment accorded to such information). In the event the Service Provider has provided its consent, the Parties shall separately agree in writing on the conditions and modalities related to such performance or disclosure (as applicable).
5. Customer Data – Personal Data
5.1 Use and Processing of Customer Data
In using the Services, the Customer may transmit and upload Customer Data to the Managed Infrastructure. The Customer acknowledges and agrees that, if the Customer uploads Customer Data, the Customer (rather than the Service Provider) shall control such Customer Data and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data, and for obtaining the necessary authorisations to use (and have the Service Provider use as per the terms of this Agreement) such Customer Data. The Service Provider shall only process Customer Data to the extent required for the performance of the Services. The Customer hereby grants the Service Provider authorisation to view, store, copy and delete or otherwise process Customer Data as part of the Service Provider’s performance of the Services, and the Customer irrevocably consents and agrees to the processing of such Customer Data by the Service Provider, to the extent the purpose of such processing is legitimate and limited to the provision of the Services. The Customer acknowledges and agrees that, to the extent Services provision is dependent on the Customer timely having made available the Customer Data, the Service Provider cannot be held responsible for failure to provide the Services in accordance with the Agreement to the extent such failure is attributable to such Customer dependency not having been met.
5.2 Personal Data and Data Processing Agreement
To the extent Customer Data contains Personal Data and the Service Provider processes such Personal Data on behalf of the Customer in connection with the Services, such processing shall be governed by the Data Processing Agreement, which is incorporated into this Agreement by reference.
The Customer shall ensure that it has an appropriate legal basis and all necessary rights, notices and authorisations for the processing of such Personal Data and for instructing the Service Provider to process such Personal Data in accordance with this Agreement and the Data Processing Agreement.
5.3 Loss, Damage and Backups
In the event of any loss or damage to Customer Data hereunder, to the extent such loss or damage is attributable to the Service Provider, Article 2.6 of the Agreement shall apply. Without prejudice to the foregoing, the Customer shall be responsible for retaining backup copies of all Customer Data.
5.4 Customer Responsibility for Customer Data
The Customer acknowledges and agrees that the Service Provider shall have no responsibility for the content of any Customer Data processed by the Customer in connection with its use of the Services, save to the extent such content were to be modified, corrupted or deleted as a result of the Service Provider’s non-compliance with its obligations hereunder. The Customer undertakes and warrants that the Customer Data which it processes in using the Services (i) shall comply with applicable laws and regulations, and (ii) shall not violate or infringe any intellectual property rights or other rights of any third party. To the extent necessary, the Customer shall obtain and shall maintain all necessary licenses, consents, and permissions in respect of the Customer Data as necessary for the Service Provider to perform the Services under this Agreement. The Customer shall indemnify and hold the Service Provider harmless in respect of any third-party claim based on an (alleged) breach of the Customer’s undertakings as set out in this Article.
5.5 Removal of Customer Data and Suspension Rights
The Service Provider reserves the right, without liability and without prejudice to any other rights and remedies available hereunder, to remove specific Customer Data or to suspend Services provision as strictly required in the event it were to become legally compelled to do so (including in order to comply with a legal, regulatory, law enforcement or other governmental request). In such event, the Service Provider shall notify the Customer without undue delay to the extent legally permitted. In any other instances where the Service Provider reasonably believes that Customer Data transmitted through the Services (are likely to) breach applicable laws or regulations, the Service Provider shall inform the Customer in writing (email shall suffice for this purpose), in which case the Parties shall without undue delay discuss the matter pursuant to the applicable governance process and agree, acting reasonably and in good faith, on the appropriate measures to be taken in order to prevent or end such a breach and to prevent it from reoccurring in the future.
5.6 Third-Party Data and Services
Certain Services may enable access to, integration with or processing of data, software, APIs or services supplied by third parties (“Third-Party Services”). Where applicable, use of such Third-Party Services may be subject to additional license terms or restrictions imposed by the relevant third-party provider.
The Service Provider does not control and shall not be responsible for changes to, suspension or discontinuation of Third-Party Services by their respective providers, provided that the Service Provider shall use commercially reasonable efforts to minimise any resulting material disruption to the Services.
Where a third-party provider changes its pricing, licensing conditions or technical requirements, the Parties shall reasonably cooperate regarding any consequential changes required to the applicable Order or Services.
6. Liability and Disclaimer
6.1 Exclusions for Matters Outside the Service Provider’s Control
The Service Provider shall not be responsible for any non-compliance with its obligations hereunder to the extent not attributable to it, including any non-compliance caused by use of the Services contrary to the Agreement, the modification or alteration of the Software or Services by any party other than the Service Provider or any party acting on its behalf or under its control, or any event occurring outside of, or component outside of, the scope of the Managed Infrastructure.
6.2 Service Availability and Compatibility Disclaimer
The Service Provider (i) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, nor that the Services will achieve any intended result, or will be compatible or work with any other goods, services, technologies or materials (including any software, hardware, system or network) other than as expressly specified in this Agreement; and (ii) will not be responsible for any delays, delivery failures, or any other loss or damage to the extent resulting from the transfer of data over communications networks and facilities, including the internet, provided the Service Provider has complied with its obligations hereunder, and the Customer acknowledges that the Services may be subject to limitations and delays inherent to the use of such communications facilities.
6.3 Disclaimer of Warranties
Save as expressly stated in this Agreement, the Service Provider does not make any warranties, express or implied, including warranties of merchantability and fitness for a particular purpose, in respect of the Services or otherwise in relation to the Agreement.
6.4 Exclusion of Certain Losses and Damages
To the maximum extent permitted under applicable law, the Service Provider excludes its liability for any lost revenue or profits, loss of business, damages due to business interruption, loss or corruption of data (except to the extent expressly stipulated otherwise in the Agreement), loss of competitive advantage, opportunity loss, loss of anticipated savings, the cost of procuring substitute goods or services, reputational damage, or for any indirect, incidental, punitive, or consequential damage.
6.5 Limitation of Liability
To the maximum extent permitted under applicable law, the Service Provider’s liability hereunder shall not exceed, (i) per liability event, the Charges (excl. taxes and reimbursable expenses) paid by the Customer pursuant to the Order in respect of which the liability has arisen, during the applicable term (Initial Term or Renewal Term, as applicable) in which the liability has arisen, and (ii) in the aggregate (all claims combined) under an Order, the Charges (excl. taxes and reimbursable expenses) paid by the Customer pursuant to such Order.
6.6 Exceptions to Liability Limitations
The above limitations on and exclusions from liability shall not apply to the extent not permitted under applicable law, or to the extent the liability is attributable to fraud or wilfull misconduct by the Service Provider.
6.7 Beta Features
From time to time, the Service Provider may offer access to beta features within its platform. These beta features are provided "as is" and "as available," without any warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, or non-infringement. The purpose of providing beta features is to allow users to explore and provide feedback, which the Service Provider may use to improve the platform. Access to beta features may be limited, and the Service Provider reserves the right to modify or discontinue them at any time without prior notice. By using beta features, you acknowledge that they may not function as expected and could contain bugs or errors.
6.8 AI-assisted functionality
Certain features of the Services may use artificial intelligence, machine learning or generative AI technologies (“AI-Assisted Functionality”). Outputs produced through AI-Assisted Functionality may be probabilistic and may contain errors, omissions or inaccuracies. The Customer remains responsible for reviewing and validating such outputs before relying upon or using them. AI-generated outputs should not be relied upon as the sole basis for decisions having legal, financial, safety-critical, operationally critical or other material consequences. Unless expressly stated otherwise, the Service Provider does not warrant the accuracy, completeness or suitability of outputs generated by AI-Assisted Functionality. Customer Data processed through AI-Assisted Functionality shall remain subject to Article 5 and, where applicable, the Data Processing Agreement.
The Customer shall ensure that it has all rights and permissions necessary to submit any data or other content to AI-Assisted Functionality
7. Confidentiality
7.1 Definition of Confidential Information
The Parties acknowledge and agree that their relationship is one of trust and confidence and that in the course of performing this Agreement, each may have access to information of a proprietary and/or confidential nature of the other Party. For the purposes of this Agreement, such information shall constitute “Confidential Information” if (i) it is expressly marked or designated as confidential or a similar designation, or (ii) it should reasonably be considered confidential given its nature or the circumstances surrounding its disclosure. Confidential Information shall in any event include (without being limitative) all types of financial, business, technical, competitively sensitive or engineering information including patterns, plans, compilations, program devices, concepts, know-how, techniques, formulas, blueprints, designs, prototypes, samples, sketches, drawings, methods, processes, procedures, software, intellectual property, codes, marketing plans, financial plans, business plans, and names of customers and suppliers, whether tangible or intangible, and regardless of whether or how stored, compiled, or memorialized (whether physically, electronically, graphically, photographically, or in writing), and all copies of any of the foregoing and any analyses, studies or reports that contain, are based on, or reflect any of the foregoing.
7.2 Confidentiality Obligations and Exceptions
Each Party agrees to maintain in confidence and not to disclose the other Party’s Confidential Information to third parties without the prior written consent of the disclosing Party, provided that the Service Provider shall be entitled to disclose Customer Confidential Information to those of its and its affiliates’ employees, directors, officers, contractors and professional advisors that have a reasonable need to know such information for the purposes of this Agreement. Each Party agrees not to use the other Party’s Confidential Information for its own benefit and to take all reasonable measures to maintain the confidentiality of all such Confidential Information in its possession or control, which shall, in no event, be less than the measures it uses to protect its own confidential information of a similar nature. A Party’s confidentiality obligations hereunder shall not apply to any information which (i) is or becomes generally known under circumstances involving no breach by the receiving Party of its confidentiality obligations hereunder, (ii) is approved for release by written authorization from the disclosing Party, (iii) is disclosed to the receiving Party without confidentiality restrictions, by a third party that is not under any obligation of confidentiality to the disclosing Party, (iv) is developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, or (v) is legitimately in the receiving Party’s possession, without confidentiality restrictions, prior to receipt from the disclosing Party.
7.3 Legally Required Disclosure
In the event that the receiving Party becomes legally compelled to disclose the disclosing Party’s Confidential Information, the receiving Party shall provide the disclosing Party with prompt notice so that the disclosing Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the receiving Party shall furnish only that portion of the Confidential Information which is legally required and the receiving Party shall seek to obtain reasonable assurance that confidential treatment will be accorded to that Confidential Information.
7.4 Return, Destruction and Remedies
Upon the disclosing Party’s written request, the receiving Party shall promptly discontinue use of the Confidential Information and promptly return any Confidential Information to the disclosing Party, or, at the disclosing Party’s option, destroy the same, and deliver a written statement certifying that its obligations under this clause 7.4 have been complied with. Each Party acknowledges that a breach of this Section 7 may cause irreparable harm to the other Party and that the other Party shall be entitled to seek injunctive or other equitable relief in the event of such a breach, in addition to any other remedies it may have in contract, at law or in equity.
7.5 Survival of Confidentiality Obligations
The confidentiality obligations under this Article shall survive termination or expiry of this Agreement for five (5) years, provided that, with respect to information constituting a trade secret under applicable law, such obligations shall continue for so long as such information remains a trade secret.
8. Charges
8.1 Charges and annual advance invoicing
As consideration for the Services, the Customer shall pay the Charges specified in the applicable Order.
Unless expressly agreed otherwise in the applicable Order, all recurring subscription Charges shall be invoiced annually in advance for each twelve (12) month period of the Initial Term and each Renewal Term.
Any alternative invoicing or payment schedule agreed by the Service Provider, including quarterly, semi-annual or monthly invoicing, shall constitute a payment accommodation only and shall not alter the duration of, or the Customer's financial commitment for, the applicable Initial Term or Renewal Term.
Unless expressly stated otherwise in the applicable Order, pricing offered by the Service Provider is based on annual payment in advance. Where the Service Provider agrees to an alternative invoicing or payment schedule, the Service Provider may apply different pricing or an additional payment-frequency surcharge, as specified in the applicable Order.
The applicable subscription tier shall be specified in the Order. The Customer may not change to a lower subscription tier during the applicable Initial Term or Renewal Term, and no refund, credit or reduction of Charges shall apply solely because the Customer does not use, or does not fully use, the subscribed capacity, functionality or Services.
8.2 Subscription commitment and non-use
The Customer acknowledges that the Charges are based on the subscription capacity, functionality and Services made available to the Customer during the applicable committed Initial Term or Renewal Term and are not dependent upon the Customer's actual level of use of the Services.
Accordingly, non-use or reduced use of the Services, or changes in the Customer's personnel, organisation, funding, internal resources, business requirements, projects, priorities or intended use of the Services, shall not entitle the Customer to terminate an Order, reduce the Charges, obtain a refund or credit, or otherwise be released from its payment obligations, except where expressly provided in this Agreement, the applicable Order or mandatory applicable law.
8.3 Payment terms and late payment
Unless expressly agreed otherwise in the applicable Order, invoices shall be due and payable within thirty (30) calendar days from the invoice date.
Any undisputed amount not paid when due shall automatically and without prior notice bear interest at the statutory rate applicable to late payments in commercial transactions under the Belgian Act of 2 August 2002 concerning combating late payment in commercial transactions, as amended or replaced from time to time.
The Customer shall additionally reimburse the Service Provider for reasonable costs of recovery and enforcement to the extent permitted by applicable law.
If the Customer fails to pay any undisputed amount when due, the Service Provider may, without prejudice to any other rights or remedies available to it, suspend the Customer's access to or use of the Services following written notice to the Customer until all overdue amounts, including applicable interest and recovery costs, have been paid in full.
Any suspension pursuant to this Article shall not relieve the Customer of its obligation to pay the Charges applicable during the period of suspension.
8.4 No set-off or withholding
Except to the extent required by mandatory applicable law, all amounts payable by the Customer under this Agreement or any Order shall be paid in full without set-off, counterclaim, deduction or withholding.
The Customer may not withhold payment of any undisputed amount because of a dispute concerning another invoice, Order, Service or claim against the Service Provider.
Where the Customer is required by applicable law to make a deduction or withholding from any payment, the Customer shall promptly notify the Service Provider and shall provide such documentation as the Service Provider may reasonably request in relation to such deduction or withholding.
8.5 Invoice disputes
If the Customer disputes any portion of an invoice, the Customer shall notify the Service Provider in writing within fifteen (15) calendar days following the invoice date, specifying in reasonable detail the amount disputed and the factual and contractual basis of the dispute.
Failure to submit such notice within that period shall, to the maximum extent permitted by applicable law, constitute acceptance of the invoice.
The Customer shall in all circumstances timely pay any undisputed portion of the invoice. The existence of a bona fide dispute concerning part of an invoice shall not entitle the Customer to withhold payment of any other invoice or undisputed amount.
The Parties shall use reasonable efforts to resolve any invoice dispute promptly and in good faith.
8.6 Taxes
All amounts payable by the Customer under this Agreement or any Order are exclusive of any applicable value added tax, sales tax, use tax, excise tax, services tax or other similar taxes, duties or governmental charges imposed in connection with the Services or the Charges.
The Customer shall be responsible for payment of all such taxes, duties and charges, other than taxes imposed on the Service Provider's net income.
Where the Service Provider is required by applicable law to collect, pay or remit any such tax, duty or charge, the Customer shall pay or reimburse the Service Provider for the corresponding amount, unless the Customer provides the Service Provider with a valid tax exemption certificate or other documentation sufficient under applicable law to establish that such tax is not payable.
If the Service Provider pays any tax, duty or charge for which the Customer is responsible under this Article, the Customer shall promptly reimburse the Service Provider for such amount, together with any applicable interest, penalties or reasonable costs incurred as a result, except to the extent such interest, penalties or costs result from the Service Provider's own failure to comply with applicable law.
8.7 Indexation
The Service Provider may adjust the recurring Charges upon commencement of each Renewal Term based on the evolution of the Belgian Agoria Digital index since the commencement of the preceding Initial Term or Renewal Term, as applicable.
Any such indexation shall apply automatically unless expressly agreed otherwise in the applicable Order.
An adjustment pursuant to this Article shall not constitute an amendment to this Agreement or the applicable Order and shall not, in itself, entitle the Customer to terminate or not perform its obligations under the applicable Order.
For the avoidance of doubt, application of the index shall not result in a reduction of the Charges.
9. Proprietary Rights
9.1 Ownership of the Services and Intellectual Property
The Customer acknowledges and agrees that the Service Provider and/or its licensors own and shall retain all rights, title and interest, including any Intellectual Property Rights, in the Software, the Services and the Documentation, and in the Managed Infrastructure. Except as expressly stated herein, this Agreement does not grant the Customer any rights in respect of the Software, the Services, the Documentation, or the Managed Infrastructure.
9.2 Ownership of Customer Data
The Customer shall retain all rights in the Customer Data and except for the limited user rights granted to the Service Provider pursuant to Article 5, the Service Provider is not granted any rights therein.
9.3 Service Provider Databases and Derived Rights
Notwithstanding Article 9.2, the Service Provider shall own and retain all rights, title and interest, including any Intellectual Property Rights, in any databases created by it in making available and/or for the purposes of making available the Services.
For the avoidance of doubt, nothing in this Article 9.3 transfers ownership of Customer Data or Exportable Data to the Service Provider or limits the Customer's rights under Article 10.7.
9.4 Feedback
The Service Provider may freely use any Feedback without attribution or the need for the Service Provider (or any third party) to pay the Customer or any third party any royalties or other fees of any kind, whereby “Feedback” means any suggestions or recommendations for improvement of, or modifications to, the Services made by or on behalf of the Customer.
10. Term and termination
10.1 Term of Agreement
This Agreement shall take effect from the Effective Date and shall continue unless and until terminated by either Party on giving at least three months’ notice or as otherwise terminated hereunder. Terminating the Agreement does not terminate or prevent renewal of an existing Order unless that Order is separately terminated in accordance with Article 10. This Agreement continues to govern all outstanding Orders notwithstanding termination of the Agreement.
10.2 Term and automatic renewal of Orders
Unless expressly agreed otherwise in an Order, each Order shall be entered into for a committed period of twelve (12) months (the "Initial Term"), commencing on the start date specified in the Order.
Upon expiry of the Initial Term, the Order shall automatically renew for successive committed periods of twelve (12) months (each a "Renewal Term") unless either Party gives the other Party written notice of non-renewal at least three (3) months before expiry of the Initial Term or then-current Renewal Term.
The Initial Term and each Renewal Term constitute committed subscription periods. Except where expressly provided in this Agreement. The Customer shall have no right to terminate an Order for convenience during an Initial Term or Renewal Term. If the Customer nevertheless purports to terminate an Order other than pursuant to an express contractual or mandatory statutory right, Article 10.5 shall apply.
The frequency with which Charges are invoiced or paid shall have no effect on the duration of the Initial Term or any Renewal Term.
10.3 Termination for cause
Either Party may terminate an Order upon written notice if the other Party:
(a) commits a material breach of this Agreement or the applicable Order and, where such breach is capable of remedy, fails to remedy such breach within thirty (30) calendar days following receipt of written notice specifying the breach;
(b) commits a material breach which is incapable of remedy; or
(c) becomes subject to bankruptcy, insolvency, liquidation or a similar proceeding, or ceases to carry on its business, other than for the purposes of a solvent restructuring or reorganisation.
Notwithstanding the foregoing, the Service Provider may suspend the Services and/or terminate the applicable Order if the Customer fails to pay any undisputed amount due and fails to remedy such non-payment within fifteen (15) calendar days following written notice.
The Service Provider may terminate or suspend an Order with immediate effect in the event of a material breach by the Customer of Articles 3, 4 or 9 which, by its nature, cannot reasonably be remedied, including deliberate unauthorised access, reverse engineering, infringement of the Service Provider's Intellectual Property Rights, or unlawful use of the Services.
10.4 Consequences of termination
Upon termination of an Order for any reason:
- the Order shall automatically terminate, except for those provisions stipulated herein to survive its termination;
- all user rights hereunder in respect of the Services in scope of such Order shall immediately and automatically terminate and the Service Provider shall have no further obligation to provide the Services;
- each Party shall return and cease all further use of any equipment, property, documentation, Confidential Information and other items (and all copies thereof) belonging to the other Party and obtained pursuant to this Agreement;
- at the Customer's request, Customer Data shall be made available for retrieval, retained and deleted in accordance with Article 10.7 and applicable law;
- any termination of this Agreement shall not release either Party hereto from any liability which, at the time of such termination, had already accrued to the other Party or which is attributable to a period prior to such termination, nor preclude either Party from pursuing any rights or remedies it may have under contract, at law or in equity with respect to any breach of this Agreement.
10.5 Financial consequences of early termination
The Charges payable under an Order reflect the Customer's commitment for the full applicable Initial Term or Renewal Term.
If:
(a) the Customer terminates or purports to terminate an Order before expiry of the applicable Initial Term or Renewal Term other than pursuant to an express contractual or mandatory statutory right to do so without such financial consequence; or
(b) the Service Provider terminates an Order pursuant to Article 10.3 as a result of the Customer's breach,
then, without prejudice to the Service Provider's other rights and remedies, all unpaid recurring Charges attributable to the remainder of the committed Initial Term or Renewal Term shall become immediately due and payable, to the maximum extent permitted by applicable law.
Where Charges were invoiced annually in advance, no refund shall be due in respect of the remaining committed Term.
Where the Service Provider has exceptionally agreed to payment by instalments, the outstanding instalments attributable to the remaining committed Term shall become immediately due and payable.
The Parties acknowledge that alternative payment frequencies constitute payment accommodations only and do not create separate subscription terms or separate termination rights.
Where the Customer validly terminates an Order as a result of an uncured material breach by the Service Provider pursuant to Article 10.3, the Customer shall only be liable for Charges relating to the period up to the effective termination date and shall receive a pro-rated refund of prepaid recurring Charges attributable to the period following such effective termination date.
10.6 Suspension
The Service Provider may suspend the Services (a) in accordance with Article 5.5, (b) for purposes of planned and unplanned maintenance on the Managed Infrastructure, and (c) in the event of the security of the Services, of the Customer Data, or of the Managed Infrastructure being compromised, or if the Service Provider reasonably determines that suspension of the Services is needed to protect the integrity of the Services, Customer Data or Managed Infrastructure. In case of suspension pursuant to (a) or (c) above, the Service Provider shall (i) give the Customer an advance 24 hours’ notice, and (ii) carry out such suspension in consultation with the Customer, provided that the Service Provider shall be entitled to suspend on giving a shorter notice or no notice if the Service Provider reasonably determines (as can be substantiated by the Service Provider) that such shorter notice period or lack of notice is necessary in order to protect the justified interests of the Customer, the Service Provider, or a third party. In the event of such suspension, the Service Provider shall use reasonable efforts to mitigate adverse impact on the Customer.
10.7 EU Data Act — Switching and Data Portability
To the extent the Services constitute data processing services subject to the switching obligations of Regulation (EU) 2023/2854 (the “EU Data Act”), the provisions of this Article shall apply.
10.7.1 Switching request
The Customer may request that the Service Provider facilitate the switching of the applicable Services to another provider of data processing services, the transfer of applicable Exportable Data and digital assets to an on-premises ICT infrastructure, or the erasure of such Exportable Data and digital assets, in accordance with the EU Data Act.
The Customer shall provide the Service Provider with the information and cooperation reasonably required to implement the requested switching process, including, where applicable, sufficient details regarding the destination provider or infrastructure.
The notice period for initiation of the switching process shall not exceed two (2) months following receipt of a complete switching request, unless a shorter period is required by mandatory applicable law.
10.7.2 Transitional period
Following expiry of the applicable notice period, the Service Provider shall facilitate the switching process without undue delay and, where required by the EU Data Act, within a transitional period not exceeding thirty (30) calendar days.
During the transitional period, the Service Provider shall, to the extent required by applicable law:
(a) provide reasonable assistance to the Customer and third parties authorised by the Customer;
(b) use due care to maintain continuity of the contracted Services;
(c) provide information regarding known risks to continuity associated with the switching process; and
(d) maintain an appropriate level of security for Exportable Data and digital assets.
Where completion of the switching process within thirty (30) calendar days is technically unfeasible, the Service Provider may apply an alternative transitional period in accordance with the EU Data Act, after providing the Customer with the notification and justification required thereunder.
Where permitted by the EU Data Act, the Customer may request one extension of the transitional period for a period reasonably appropriate to its circumstances.
10.7.3 Exportable Data
For the purposes of this Article, “Exportable Data” means the Customer Data and other input and output data, including relevant metadata, generated or co-generated through the Customer's use of the Services that qualifies as exportable data under the EU Data Act.
Exportable Data shall not include the Software, source code, algorithms, proprietary analytical methods, internal platform architecture, security information, trade secrets, Intellectual Property Rights, know-how or other proprietary technology of the Service Provider or its licensors, except to the extent their exclusion is prohibited by mandatory applicable law.
10.7.4 Export and switching assistance
The Service Provider shall make Exportable Data available in a commonly used and machine-readable format where required by applicable law.
The Service Provider shall provide such reasonable technical and operational information as is required under the EU Data Act to support the Customer's switching process and exit strategy.
The Service Provider shall not be responsible for implementing, configuring or ensuring the compatibility or functional equivalence of the Customer's replacement service, destination infrastructure or third-party systems, except to the extent expressly required by mandatory applicable law.
10.7.5 Completion of switching
Where the Customer switches to another provider of data processing services or to an on-premises ICT infrastructure, the affected Services shall be considered terminated upon successful completion of the switching process where required by the EU Data Act.
Where the Customer requests erasure of Exportable Data and digital assets without switching to another provider or infrastructure, the affected Services shall be considered terminated at the time required under the EU Data Act.
Any such termination shall be without prejudice to Charges accrued up to the effective termination date and to any financial consequences associated with termination before expiry of a committed Initial Term or Renewal Term, to the extent permitted by applicable law.
10.7.6 Retrieval and deletion
Following completion of the switching process, Exportable Data shall remain available for retrieval by the Customer for at least thirty (30) calendar days, or such longer period as may be required by mandatory applicable law.
Following expiry of the applicable retrieval period, and subject to any legal retention obligations, the Service Provider may irretrievably delete the Exportable Data and digital assets concerned and shall do so where required by the EU Data Act.
10.7.7 Charges
Until 11 January 2027 inclusive, any charge imposed specifically for the switching process shall not exceed the costs directly incurred by the Service Provider in connection with such switching process, to the extent permitted by the EU Data Act.
From 12 January 2027, the Service Provider shall not impose switching charges prohibited by Article 29 of the EU Data Act.
For the avoidance of doubt, switching charges do not include:
(a) standard subscription Charges;
(b) Charges for Services continuing during an applicable notice, transitional or retrieval period;
(c) lawful financial consequences associated with termination before expiry of a committed Initial Term or Renewal Term; or
(d) charges for additional professional services requested by the Customer which fall outside the switching assistance required by mandatory applicable law.
10.7.8 Relationship with committed Term
The exercise by the Customer of rights under this Article shall not, by itself, relieve the Customer from Charges or other financial obligations attributable to its committed Initial Term or Renewal Term, except to the extent mandatory applicable law provides otherwise.
A switching request shall not be interpreted as converting a committed subscription into a cancellable or month-to-month subscription.
Nothing in this Article shall restrict any mandatory rights available to the Customer under the EU Data Act.
11. Miscellaneous
11.1 Reference right.
Use by one Party of the other Party’s name or trademarks in any public announcements or for promotional, advertising or other purposes, shall require the other Party’s prior written approval (such approval not to be unreasonably withheld). Notwithstanding the foregoing, the Service Provider shall be entitled to reference the Customer as a Service Provider customer in its commercial and marketing documentation and customer listings, as a sales reference, as well as on the Service Provider’s websites without having to obtain additional consent.
11.2 Assignment and subcontracting
The Customer may not assign or transfer this Agreement or any Order, in whole or in part, without the Service Provider's prior written consent.
The Service Provider may assign or transfer this Agreement or any Order without the Customer's consent to an Affiliate or in connection with a merger, corporate reorganisation, financing, change of control, or sale of all or substantially all of the business or assets to which this Agreement relates.
The Service Provider may engage subcontractors and third-party infrastructure or cloud service providers in connection with the provision of the Services without the Customer's prior consent, subject to the Service Provider remaining responsible for the performance of its contractual obligations to the extent provided under this Agreement.
Where the processing of Personal Data is involved, the appointment of sub-processors shall be governed by the Data Processing Agreement.
11.3 Conflicts.
In the event of a conflict between the Agreement and a Schedule, the Schedule shall prevail. In the event of a conflict between the provisions of this Agreement (including its Schedules) and the provisions of an Order, the Order shall prevail.
11.4 Entire Agreement – Successors – Paragraph Headings – Severability – Waiver.
This Agreement, including any schedules hereto and Orders concluded hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, whether oral or written, between the Parties with respect to such subject matter. Additional or deviating terms and conditions (such as may be included in purchase orders or other Customer documents) are hereby expressly refused and rejected, even if the Service Provider does not refuse or reject such terms and conditions on a case by case basis. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and assigns. The paragraph headings of this Agreement are included merely for reference and are not to be used in interpreting this Agreement. The provisions of this Agreement are severable and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby. Any failure to enforce any provision of the Agreement shall not constitute a waiver thereof or of any other provision.
11.5 Force Majeure.
Neither Party shall be liable for a delay or default in the performance of its non-monetary obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to fire, flood, accident, storm, acts of God, war, riot, government interference, terrorist attack, epidemic/pandemic, or strikes. Dates and times by which the Service Provider is required to perform under this Agreement or an Order shall be automatically postponed to the extent that the Service Provider is prevented from meeting them as a result of a force majeure event. If such inability to perform due to force majeure continues for three (3) consecutive months, either Party shall be entitled to terminate the Agreement and/or affected Orders on giving written notice.
11.6 Governing Law and Jurisdiction
This Agreement and each Order shall be exclusively governed by and construed in accordance with Belgian law, without regard to its conflict-of-law principles. The courts having jurisdiction over Hasselt, Belgium shall have exclusive jurisdiction over any dispute arising out of or relating to this Agreement or any Order.
11.7 Independent Contractor
The Service Provider shall perform the Services as an independent contractor. Nothing contained in this Agreement or an Order shall be construed as creating any agency, partnership or other form of joint enterprise between the Parties, or as creating an employment relationship between the Customer and assigned Service Provider resources. Neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. The Customer shall retain control over, and responsibility for, all decisions affecting its business.
11.8 Notices
All notices to be given under this Agreement or any Order shall be in writing and shall be deemed to have been given:
(i) on the date of receipt if delivered by hand;
(ii) three (3) calendar days after being sent by registered mail;
(iii) on the date of receipt, as evidenced by the courier's records, if sent by recognised courier service; or
(iv) on the date of transmission if sent by email to the contractual, legal or administrative contact specified in the applicable Order, provided that the sender does not receive an automated message indicating that the email was undeliverable.
Each Party shall be responsible for keeping its contact details up to date and shall notify the other Party of any change in accordance with this Article.
Notices relating to termination, non-renewal, breach, suspension or any other matter affecting the continuation of an Order may validly be given by email in accordance with this Article.
11.9 Non-solicitation
During the term of this Agreement and for a period of twelve (12) months thereafter, the Customer shall not, directly or indirectly, hire or otherwise engage, in whatever capacity (including as an employee or consultant), or solicit the services of, any personnel member of the Service Provider or its affiliates, while such person is employed or engaged by the Service Provider or its affiliates and during six months after such employment or engagement ends. For the purposes of this section, “hire” means to employ an individual as an employee or engage such individual as an independent contractor, whether on a full-time, part-time or temporary basis.
In case the above non-solicitation/non-hire obligations are not complied with and give rise to actual employment/engagement of the Service Provider’s or its affiliates’ personnel, the Customer shall compensate the Service Provider by paying, upon a first request, a lump-sum amount corresponding to twelve times the gross salary/compensation each such person so hired/engaged earned with the Service Provider or its affiliates during the last full month such person worked for the Service Provider or its affiliates.
11.10 No third-party beneficiaries
This Agreement (or any Order) does not confer any rights on any person or party other than the Parties and, where applicable, their successors and permitted assigns.
11.11 Survival
The provisions that are expressly or by their nature intended to survive termination of the Agreement, including Articles 1, 5.3, 5.4, 6, 7, 8, 9, 10.4, 10.5, and 11 (as applicable), shall survive any termination or expiration of this Agreement.
List of Schedules
The following Schedules are attached to this Agreement and form an integral part thereof: